Sent via email

December 14, 2021

Senate and Governmental Affairs Committee

Louisiana State Senate
P.O. Box 94183
Baton Rouge, LA 70804
s&g@legis.la.gov

House and Governmental Affairs Committee

Louisiana House of Representatives
P.O. Box 94062
Baton Rouge, LA 70804
h&ga@legis.la.gov

Re: Response to Chair Stefanski’s November 22 Press Conference

Remarks Concerning Congressional Redistricting

Dear Chair Stefanski, Chair Hewitt, and Other Members of the House and Senate
Governmental Affairs Committees:

The NAACP Legal Defense and Educational Fund, Inc., the ACLU Voting Rights
Practice, American Civil Liberties Union of Louisiana, Louisiana Justice Institute,
Louisiana State Conference of the NAACP, and Power Coalition for Equity and Justice
write in response to comments made by Chair Stefanski concerning congressional
redistricting during his November 22, 2021, press conference. Chair Stefanski
expressed a number of concerns about the illustrative congressional maps submitted by
a coalition of organizations, including our organizations, on October 18, 2021 (the
“Coalition maps”), 1 which we have reattached as Appendix 1 of this letter. In
particular, Chair Stefanski articulated potential objections to drawing a second district

1 See LDF Sends Letter to Louisiana House and Senate Governmental Affairs Committees on
their Obligation to Comply with Section 2 of the Voting Rights Act During Redistricting (Oct.
18, 2021), https://www.naacpldf.org/press-release/ldf-sends-letter-to-louisiana-house-and-
senate-governmental-affairs-committees-on-their-obligation-to-comply-with-section-2-of-
the-voting-rights-act-during-redistricting/.
comprised of a majority of Black voters (“majority-Black opportunity district”), which
this body has the occasion to do in the 2022 legislative session. 2 These comments
misinterpret federal and state law and misconstrue the Coalition maps, and we send
this letter to correct those inaccuracies and provide further guidance on the
Committees’ obligation to comply with Section 2 of the Voting Rights Act and the
Fourteenth Amendment to the U.S. Constitution.

First, Chair Stefanski contended that the districts “in the maps [he has] seen
submitted to [him]” may not be “effective” based on the minority population and voting-
age population in these districts. 3 Chair Stefanski suggested that the majority-Black
opportunity districts proposed in the Coalition maps would not allow a candidate
preferred by Black voters to prevail due to an insufficient number of Black voters in
those districts.

Chair Stefanski’s concerns are unfounded and reflect an incomplete analysis of

the Coalition maps. We conducted an analysis of recompiled election results and
determined that the two proposed majority-Black opportunity districts in the Coalition
maps (CD2 and CD5) would reliably perform to provide an opportunity for a candidate
preferred by Black voters to prevail. 4

Based on this analysis, the candidate preferred by Black voters clearly would
have the opportunity to prevail in CD2 as drawn in all seven of the Coalition maps
(each of which include some portion of the current Congressional District 2), with vote
shares for the Black-preferred candidate generally ranging between 62.2% and 68.8%.
This analysis also showed that the Black candidate of choice would prevail in CD5 in
each of the Coalition maps, the majority of the time—in some cases by significant
margins—although the elections would be more competitive. 5 These results
demonstrate that it is possible to draw two majority-Black opportunity districts that

2 The only maps submitted to the Committees with two majority-Black opportunity districts
were the Coalition maps submitted on October 18, 2021. See Appendix 1.
3 Chairman Stefanski made these remarks as a guest speaker at the Press Club of Baton
Rouge. A recording of the press conference can be found here:
https://www.youtube.com/watch?v=SuquGa6rJI8.
4 Our analysis was performed by taking vote totals (or shares) from a selection of recent
racially contested elections (i.e., elections featuring at least one Black and one white
candidate) in Louisiana and calculating the vote totals for the candidate preferred by Black
voters had the election been run under each of the Coalition maps.
5 For example, Gwen Collins-Greenup, a Black woman running against a white male, was the
candidate of choice of Black voters for the statewide run-off election for Secretary of State
in December of 2018. In 2018, the Secretary of State run-off was the only statewide race on
the ballot and there were no federal office run-offs that year. The recompiled election results
from the Secretary of State run-off show that the vote share for Collins-Greenup in CD2 of
the Coalition maps ranged between 63.8% and 70.6%; and the vote share for Collins-
Greenup in CD5 of the Coalition maps ranged from 53.6% to 61%.

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would be effective and would comply with Section 2 by providing Black voters with an
equal opportunity to elect candidates of their choice.

Second, Chair Stefanski stated that the “some of the [proposed] districts look
very similar to districts that have been struck down in the past as racial gerrymanders.”
He specifically referred to two districts—“one that’s commonly referred to as the ‘Zorro’
district and one that’s commonly referred to as the ‘slash’ district”—that were struck
down by the courts. 6

Chairman Stefanski’s statements are inaccurate and lead to erroneous

conclusions about the legality of two majority-Black opportunity districts in Louisiana.
Chairman Stefanski is seemingly referring to the Hays v. Louisiana, 936 F. Supp. 360
(W.D. La. 1996), cases. The maps singled out in Hays were drawn nearly 30 years ago
(following the 1990 census) and were struck down because they “cavalierly
disregard[ed]” the traditional redistricting principles that are usually considered
during the redistricting process, including compactness and respect for political
subdivisions. 7

In contrast to the maps in Hays, the seven Coalition maps illustrate different
ways to achieve two majority-Black opportunity districts while also considering
traditional redistricting principles. Each of the seven Coalition maps is more compact
than the current congressional map on at least two of the three widely recognized
statistical measures of compactness. 8 In addition, while the “Zorro” map in the Hays
cases was rejected in part for splitting parishes 28 times, the Coalition maps
demonstrate that it is possible to draw a map using 2020 Census data that splits
relatively few parishes. 9 Plan A1, for instance, splits parishes only 14 times, which is
even better than the current map, which splits parishes 15 times.

In sum, the Hays cases do not foreclose the creation of a second majority-Black
opportunity district in Louisiana. Indeed, as recently as 2019, a federal court held that
a Section 2 challenge to Louisiana’s current congressional districts—alleging, among
other things, that an additional majority-minority district could be developed—was

6 Although Chair Stefanski said that these maps were struck down in the “early 2000s,” he
appears to be referring to two maps struck down in Hays v. Louisiana following the 1990
Census. The Z-shaped, “Zorro” district was declared unlawful in Hays v. Louisiana, 839 F.
Supp. 1188 (W.D. La. 1993) (hereinafter Hays I). The “slash” district, or “inkblot” district,
proposed after the Zorro district was rejected by the court, was also struck down in Hays v.
Louisiana, 862 F. Supp. 119 (W.D. La. 1994) (hereinafter Hays II), and again in Hays v.
Louisiana, 936 F. Supp. 360 (W.D. La. 1996) (hereinafter Hays III).
7 Hays I, 839 F. Supp. at 1200–01. Instead of adhering to these principles, the court found
that the map creators “concentrated virtually exclusively on racial demographics and
considered essentially no other factor” in drawing up an additional majority-minority
congressional district. Hays III, 936 F. Supp. at 368. Moreover, it should be noted that the
Hays line of cases were racial gerrymandering cases, not Section 2 challenges.
8 See Compactness Reports for Illustrative Maps (on file with LDF).
9 Hays I, 839 F. Supp. at 1200-01.

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credible enough to survive a motion to dismiss. 10 Instead, the Hays cases reinforce the
importance of drawing districting plans that carefully evaluate whether districts can
be drawn in which the minority population is sufficiently large and geographically
compact to constitute a majority and respecting traditional redistricting principles to
the extent possible to comply with Section 2 of the Voting Rights Act.

Third, Chair Stefanski asserted that there has been “a lot of talk” among
Committee members about preserving the “current congressional configuration” by
“tweaking around the edges,” in part because the current congressional map was
“precleared” by the Department of Justice (“DOJ”) under Section 5 of the Voting Rights
Act. Chair Stefanski claimed that because the DOJ precleared the current maps, “we
know this configuration is legal.”

Chair Stefanski is incorrect as a matter of law. DOJ preclearance

determinations are based on compliance with Section 5 of the Voting Rights Act, not
compliance with Section 2. The two provisions use different legal standards, and the
fact that a map was precleared under Section 5 does not necessarily mean it would
comply with Section 2. Section 5 prohibits “retrogressive” maps that weaken the ability
of Black voters to participate in the democratic process when compared to a previous
map. 11 In contrast, Section 2 prohibits maps that dilute minority voting strength based
on the U.S. Supreme Court’s framework in Gingles, regardless of whether the map is
retrogressive when compared to a previous map. 12

The Supreme Court has expressly “refuse[d] to equate a Section 2 vote dilution
inquiry with the Section 5 retrogression standard.” 13 Therefore, maps that meet
preclearance standards may nevertheless violate Section 2. Indeed, the Supreme Court
and numerous federal courts have struck down district maps as violating Section 2 even
when those maps were precleared by the DOJ under Section 5. 14 For that matter, the
fact that a federal court denied in 2019 a motion to dismiss a Section 2 claim again

10 Johnson v. Ardoin, No. 18-cv-00625, 2019 WL 2329319 (M.D. La. May 31, 2019).
11 Thornburg v. Gingles, 478 U.S. 30 (1986); see also United States Department of Justice,
Guidance under Section 2 of the Voting Rights Act,
https://www.justice.gov/opa/pressrelease/file/1429486/download.
12 The October 18 letter included a more detailed overview of the Gingles framework used by
courts to prove a Section 2 violation.
13 See Georgia v. Ashcroft, 539 U.S. 461 (2003).
14 See, e.g., League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 480 (2006) (holding
that Texas’s congressional redistricting plan violated Section 2 of the VRA, notwithstanding
the fact that the plan had been precleared by DOJ under Section 5 following the 2000
Census); Benavidez v. Irving Indep. Sch. Dist., No. 3:13-CV-0087-D, 2014 WL 4055366, at
*19 (N.D. Tex. Aug. 15, 2014) (same, noting that “the Supreme Court has repeatedly
recognized that § 2 and § 5 have different aims with different requirements, and that a
change that is permissible under § 5 may in fact violate § 2”); St. Bernard Citizens For Better
Gov’t v. St. Bernard Par. Sch. Bd., No. CIV.A. 02-2209, 2002 WL 2022589, at *2 n.2 (E.D.
La. Aug. 26, 2002) (declaring a redistricting plan invalid under Section 2, notwithstanding
the fact that the plan had been precleared by DOJ).

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Louisiana’s current map should make it clear to the Committees that preclearance of
the previous map does not insulate the Committees from the requirements of Section
2. 15

Moreover, the interest in “tweaking around the edges” of the current

congressional configuration disregards its obligations to comply with Section 2 of the
Voting Rights Act. As previously explained in the October 18 letter, a new congressional
map that includes only one majority-Black opportunity district likely violates Section 2
because it would deprive Black voters in Louisiana—who represent approximately one-
third of the state’s voting age-population—of an opportunity to elect the candidate of
their choice in five of Louisiana’s six congressional districts.

Fourth, Chair Stefanski questioned whether District 2 could remain comprised

of a majority of Black voters without including Baton Rouge. Specifically, in response
to a reporter who correctly noted that District 2 could “still be a majority-minority
district without Baton Rouge,” Chair Stefanski asked, “could it?” and added, “I would
have to see those numbers and I’d love if you submitted a map.”

Chair Stefanski’s concerns are unfounded. As demonstrated in each of the seven

Coalition Maps, it is possible to remove Baton Rouge from District 2 and keep District
2 a majority-Black district, while also drawing a second majority-Black opportunity
district that includes the majority of Baton Rouge’s predominantly Black communities.
In each of the seven Coalition maps, CD2 and CD5 both have a Black voting-age
population (BVAP) over 50%.

Fifth, Chair Stefanski expressed the Committee’s commitment to preserving

whole precincts. However, state law does not require preservation of whole precincts.
House Concurrent Resolution 90, which sets forth redistricting principles for the
Committee’s consideration, merely advises preservation of whole precincts “to the
extent practicable.” 16 In any event, compliance with the federal Voting Rights Act and
the U.S. Constitution must take precedence over state-level redistricting goals, such as
preserving whole precincts. 17 Moreover, the constitutional requirement that
congressional districts must be drawn with “precise mathematical equality” 18 makes it

15 See Johnson, 2019 WL 2329319 at *4.

16 HCR 90, Joint Rule No. 21(G).
17 See Terrebonne Par. Branch NAACP v. Jindal, 274 F. Supp. 3d 395, 426 (M.D. La. 2017),
rev’d on other grounds sub nom. Fusilier v. Landry, 963 F.3d 447 (5th Cir. 2020) (“While
respect for existing political boundaries is also a valued traditional districting method,
election precincts are not such important political boundaries that they should negate a
districting proposal, particularly where other key districting principles are obeyed.”)
(quoting United States v. Vill. of Port Chester, 704 F. Supp. 2d 411, 439–40 (S.D.N.Y. 2010));
Georgia State Conf. of NAACP v. Fayette Cty. Bd. of Comm'rs, 950 F. Supp. 2d 1294, 1312
(N.D. Ga. 2013) rev’d on other grounds, 775 F.3d 1336 (11th Cir. 2015) (same).
18 Karcher v. Daggett, 462 U.S. 725, 730–31 (1983) (holding that congressional districts must
be mathematically equal in population, unless a deviation from that standard is necessary
to achieve a legitimate state objective).

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virtually impossible to draw a congressional map without splitting at least some
precincts. Splitting precincts may be necessary to comply with federal and state law,
and we urge you to prioritize compliance with the Voting Rights Act and the U.S.
Constitution as you redraw the congressional map.

* * *

As explained in the October 18, 2021, letter, the state legislature has an
affirmative obligation to ensure its compliance with the Voting Rights Act, including
considering whether it is necessary to develop an additional majority-Black opportunity
district to provide Black voters with an equal opportunity to elect candidates of their
choice and to participate in the political process in congressional elections in Louisiana.

We are happy to discuss our concerns further and to provide assistance to help
ensure the Committees develop a redistricting plan that satisfies its obligations under
the Voting Rights Act, U.S. Constitution, and other requirements and considerations.
Please feel free to contact LDF Redistricting Counsel Michael Pernick at (917) 790-3597
or by email at mpernick@naacpldf.org with any questions or to discuss these issues in
more detail.

Sincerely,

/s/ Michael Pernick

Michael Pernick
Leah C. Aden, Deputy Director of Litigation
Stuart Naifeh, Manager of the Redistricting Project
Kathryn Sadasivan
Jared Evans
Arielle McTootle
NAACP Legal Defense & Educational Fund,
Inc.
40 Rector Street, 5th Fl.
New York, NY 10006

Samantha Osaki
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004

Sarah Brannon
American Civil Liberties Union Foundation
915 15th St., NW
Washington, DC 20005

Alanah Odoms, Executive Director

Chris Kaiser, Advocacy Director
Megan Snider, Staff Attorney
ACLU of Louisiana
P.O. Box 56157

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 New Orleans, LA 70156-6157

Tracie L. Washington, Esq.

Louisiana Justice Institute
3157 Gentilly Boulevard, Suite 132
New Orleans, Louisiana 70122

President Michael McClanahan

Louisiana State Conference of the NAACP
3313 Government Street
Baton Rouge, LA 70806

Ashley Shelton
Power Coalition for Equity and Justice
4930 Washington Ave.
New Orleans, LA 70125

NAACP Legal Defense and Educational Fund, Inc. (“LDF”)

Since its founding in 1940, LDF has used litigation, policy advocacy, public education,
and community organizing strategies to achieve racial justice and equity in the areas
of education, economic justice, political participation, and criminal justice. Throughout
its history, LDF has worked to enforce and promote laws and policies that prohibit voter
discrimination, intimidation, and suppression and increase access to the electoral
process.

American Civil Liberties Union Foundation

For 100 years, the ACLU has been our nation’s guardian of liberty, working in courts,
legislatures, and communities to defend and preserve the individual rights and liberties
guaranteed by the Constitution and laws of the United States. Whether it’s ending mass
incarceration, achieving full equality for the LGBT community, advancing racial jus-
tice, establishing new privacy protections for our digital age, or preserving the right to
vote or the right to have an abortion, the ACLU takes up the toughest civil liberties and
civil rights cases and issues to defend all people from government abuse and overreach.
With more than one million members, activists, and supporters, the ACLU is a nation-
wide organization that fights tirelessly in all 50 states, Puerto Rico, and Washington,
D.C., for the principle that every individual’s rights must be protected equally under
the law, regardless of race, religion, gender, sexual orientation, gender identity or ex-
pression, age, disability, national origin, and record of arrest or conviction.

American Civil Liberties Union of Louisiana

The ACLU of Louisiana has worked to advance and preserve the individual rights and
liberties guaranteed by the Constitution and laws of the United States and the State of
Louisiana since 1956. The organization is part of a nationwide network of ACLU
affiliates that fight tirelessly in all 50 states, Puerto Rico, and Washington, D.C.

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Louisiana Justice Institute

Louisiana Justice Institute is a non-profit civil rights legal advocacy organization and
law firm that fosters and supports social justice campaigns across Louisiana to protect
the rights of Black communities. Since its founding in 2007, LJI has been involved in
numerous campaigns, impact litigation, and social justice advocacy involving – but not
limited to – immigrant rights, housing rights, education rights (including special edu-
cation advocacy and litigation), voting rights, and environmental litigation.

Louisiana NAACP State Conference

Louisiana State Conference of the National Association for the Advancement of Colored
People (the “Louisiana NAACP State Conference”) is a state subsidiary of the National
Association for the Advancement of Colored People, Inc. For decades, the Louisiana
NAACP State Conference has worked towards its mission to ensure the political,
educational, social, and economic equality of all persons and to eliminate race-based
discrimination.

Power Coalition for Equity and Justice

The Power Coalition for Equity and Justice works to build voice and power in
traditionally ignored communities. We are a coalition of groups from across Louisiana
whose mission is to organize in impacted communities, educate and turn out voters,
and fight for policies that create a more equitable and just system in Louisiana.

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 APPENDIX 1

Seven Illustrative Maps (A1 – A7) with Two Majority-Minority Opportunity Districts

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